Constitutional Law II Outline – Ancheta (Chemerinsky book)
Equal Protection
I.
Introduction
a. Equal Protection Clause: “No state shall…deny to any person within its jurisdiction the
equal protection of the laws”
i. Bolling v. Sharpe applies the Equal Protection Clause to the federal government
via the Due Process Clause (“discrimination may be so unjustifiable as to be
violative of due process”)
b. Framework
i. What is the classification?
1. Classifications on the face of the law
2. Facially-neutral laws with a discriminatory impact to the law or
discriminatory effects from its administration
ii. What is the appropriate level of scrutiny (Standard of Review)?
1. Strict: race, national origin, sometimes alienage
2. Intermediate: gender, non-marital children
3. Rational Basis Test: minimum level for all other classes
iii. Does the government action meet the level of scrutiny? Ends/Means analysis
c. Protection of Fundamental Rights under Equal Protection
i. Typically used for discrimination based on classifications, such as race, gender,
alienage, legitimacy, age, disability, wealth, sexual orientation
ii. BUT, also used if the government discriminates among people as to the exercise
of a fundamental right (see Con Law I), such as right to procreate, voting, access
to judicial process, interstate travel
II.
Rational Basis Test: minimal level of scrutiny that all government actions challenged under
equal protection must meet
a. Requirements
i. Legitimate Purpose
1. What is legitimate?
a. The Court is typically extremely deferential to the government
b. Romer v. Evans: no legitimate purpose for Colorado Amendment
that repealed all laws protecting gays, lesbians, and bisexuals
from discrimination and prohibited all future government action
to protect these individuals from discrimination
2. Actual purpose or any conceivable purpose?
a. Any conceivable interest, even if not the government’s actual
purpose, can suffice
b. U.S. Railroad Retirement Board v. Fritz: upheld a federal law
designed to prevent retired railroad workers from receiving
benefits under both the Social Security system and the railroad
retirement system; “irrelevant whether this reasoning in fact
underlies the legislative decision because this Court never has
insisted that a legislative body articulate its reasons for enacting
a statute
c. Federal Communications Commission v. Beach
Communications: reaffirmed that any conceivable legislative
purpose is sufficient and stated that “those attacking the
rationality of the legislative classification have the burden to
[negate] every conceivable basis which might support it”
III.
d. Critics argue that the rational basis of review is only meaningful
if the Court limits itself to looking at the actual purpose for a law
ii. Reasonable Relationship
1. Deference to the government – laws will be upheld unless the
government’s action is “clearly wrong, a display of arbitrary power, not
an exercise of judgment”
2. Tolerance of under- and over- inclusive laws
a. Underinclusive laws
i. Laws that don’t regulate all who are similarly situated;
raise concern that the government has enacted a law that
targets a particular politically powerless group or that
exempts those with more political clout
ii. Railway Express Agency, Inc. v. New York: upheld an
ordinance that banned all advertising on the sides of
trucks unless the ad was for the business of the truck’s
owner
b. Overinclusive laws
i. Laws that cover more people than it needs to in order to
accomplish its purpose; unfair to those who are
unnecessarily regulated and they risk “burden[ing] a
politically powerless group which would have been
spared if it had enough clout to compel normal attention
to the relevant costs and benefits
ii. New York City Transit Authority v. Beazer: upheld law
prohibiting those in methadone maintenance programs
from working for the NYCTA, but the vast majority of
those in programs posed no safety risk
c. “…perfection is by no means required” (Vance v. Bradley)
Classifications
a. Race and National Origin Classifications
i. Strict scrutiny standard; justified by the long history of racial discrimination,
which make it very likely that racial classifications will be based on prejudices
rather than legitimate public concerns, the relative political powerlessness of the
groups, and that race is an immutable trait
ii. Classifications on the Face of the Law:
1. Classifications disadvantaging racial minorities
a. Korematsu v. United States: upheld the constitutionality of the
evacuation of Japanese-Americans, accepting the government’s
claim that they posed a serious risk to national security and that
there was no way of screening to identify such individuals;
enormously over- and under- inclusive; perhaps best understood
as an example of the Court’s deference to the military, especially
in wartime
2. Classifications disadvantaging both whites and minorities
a. Loving v. Virginia: declared VA’s miscegenation statute that
made is a crime for a white person to marry outside the
Caucasian race; statute relied solely on distinctions drawn
according to race and the equal application of it does not remove
it from the 14th amendment’s proscription
3. Segregation and Desegregation
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a. Plessy v. Ferguson: upheld laws that mandated blacks and whites
use “separate but equal” facilities, stating that the intention of the
14th amendment was to enforce the equality but not to abolish
distinctions based on color and, thus, such laws are not
unreasonable
b. Brown v. Board of Education: eliminated the doctrine of
“separate but equal” in the field of education, stating that is
generates a feeling of inferiority in black children which
interferes with their learning; eventually “separate but equal”
was invalidated in other contexts
c. Problem of remedies…Brown mandated the desegregation of
schools including the reassignment of pupils and teachers, which
was met by a massive resistance and was especially difficult
because of residential sorting
4. Classifications benefiting racial minorities – Affirmative Action
a. Historically struggled with the standard of review
i. UC Regents v. Bakke: concluded that affirmative action
violated Title VI of the 1964 Civil Rights Act, but they
didn’t even discuss the level of scrutiny
ii. Fullilove v. Klutznick: majority opinion didn’t concern
the appropriate level, but upheld a federal law which
required 10% of public works monies to be set aside for
minority-owned businesses
iii. United States v. Paradise: upheld mandate that a
qualified black be hired every time a white was hired or
promoted and the plurality decision found that “the relief
ordered survives even strict scrutiny analysis”
iv. Wygant v. Jackson: Court rejected the affirmative action
plan as being not sufficiently narrowly tailored (also a
plurality)
v. Eventually, strict scrutiny emerged as the standard in
Croson
b. In Employment
i. Richmond v. J.A. Croson Co.: Court held that strict
scrutiny should be used in evaluating state and local
affirmative action programs, invalidating a Richmond,
VA plan to set aside 30% of public works monies for
minority-owned businesses
1. Compelling interest: remedying societal
discrimination is not compelling, remedying
present effects of past discrimination by a
particular institution can be compelling IF
there’s a “strong basis in evidence”
2. Necessary: over-inclusive, race-neutral
alternatives must be considered, quotas are
problematic
ii. Metro Broadcasting, Inc. v. Federal Communications
Commission: Court held that congressionally approved
affirmative action programs only need to meet
intermediate scrutiny (“to the extent that they serve
important governmental objectives within the power of
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Congress and are substantially related to the
achievement of those objectives”)
iii. Adarand Constructors, Inc. v. Pena: overruled Metro,
concluding that federal racial classifications must serve a
compelling governmental interest and must be narrowly
tailored to further that interest
iv. There still tends to be a split regarding the use of strict
scrutiny v. intermediate scrutiny
c. In Higher Education
i. Hopwood v. University of Texas: 5th circuit ruled that
diversity is not compelling enough to use race as a factor
in admissions decisions
ii. Grutter v. Bollinger: upheld the University of Michigan
Law School’s affirmative action program, ruling that
colleges and universities have a compelling interest in
creating a diverse student body and that they may use
race as one factor, among many, to benefit minorities
and enhance diversity
iii. Gratz v. Bollinger: invalidated an affirmative action
program for undergraduate admissions which added 20
points to the applications for minority students, ruling
that the program was not sufficiently “narrowly tailored”
to meet the strict scrutiny for racial classifications
iv. Thus, diversity is a compelling interest in education and
universities may use race as a factor to ensure diversity,
BUT quotas or numerical quantification of benefits if
impermissible
d. 4 major objectives for affirmative action
i. Remedying past discrimination
ii. Diversity
iii. Providing role models for those in minority communities
iv. Increasing services for minority communities
e. Race-Conscious Redistricting – Gerrymandering
i. Strict scrutiny standard (Shaw v. Reno, and each
subsequent case)
ii. 2 ways to demonstrate that race was used in drawing
election districts (trigger strict scrutiny)
1. A district has a “bizarre” shape that, in itself,
makes clear that race was the basis for drawing
the lines (Shaw v. Reno and Shaw v. Hunt)
2. Proof that race was a predominant factor in
drawing the lines (Miller v. Johnson and Bush v.
Vera)
iii. Justifications to meet strict scrutiny
1. History of race discrimination with regard to
voting is not compelling
2. A political goal, such as protecting a safe seat
for an incumbent or creating a district which has
a majority of one political party, is compelling
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3. Easley v. Cromartie: predominance of political
party considerations does not trigger strict
scrutiny
iii. Facially Neutral Laws with a Discriminatory Impact
1. Proof of a Discriminatory Purpose (v. effect)
a. Washington v. Davis: held that proof of a discriminatory impact
is insufficient, by itself, to show the existence of a racial
classification (in this case, black applicants for the D.C. police
force failed exam more than whites), justified because the
purpose of the 14th amendment is “the prevention of official
conduct discriminating on the basis of race” and mere impact
“would raise serious questions about…a whole range
of…statutes that may be more burdensome to the poor and to the
average black than to more affluent white”
b. McCleskey v. Kemp: held that proof of discriminatory impact in
the administration of the death penalty was insufficient to show
an equal protection violation, arguing that defendant “must prove
that the decisionmakers in his case acted with discriminatory
purpose”
c. However, some civil rights statutes, i.e. Title VII of the 1964
Civil Rights Act, allow proof of discriminatory impact to
establish a violation of the law; the Court maintains that under
the Constitution, proof of discriminatory impact is insufficient,
by itself, to establish a denial of equal protection
d. Issue over the ultimate purpose of the 14th amendment…is it
only about equal treatment by the government or should it also
be concerned with equal rights?
2. Difficulty in proving a discriminatory purpose
a. Personnel Administrator of Massachusetts v. Feeney: Court
provided a narrow definition of intent (this case involved a
challenge to a city’s refusal to rezone a parcel of land to allow
construction of low and moderate income housing);
“‘Discriminatory purpose,’ however, implies more than intent as
volition or intent as awareness of consequences. It implies that
the decisionmaker…selected or reaffirmed a particular course of
action at least in part ‘because of,’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.”
b. Village of Arlington Heights v. Metropolitan Housing
Development Corp.: ruled that the plaintiff must prove that a
discriminatory purpose has been a motivating factor in the
decision, which can be proved by such evidence as
i. Being so clearly discriminatory as to allow no other
explanation than that it was adopted for impermissible
purposes
ii. The history surrounding the government’s actions
iii. The legislative or administrative history of the law,
and then the burden shifts to the government to prove that it
would have taken the same action without the discriminatory
motivation
b. Alien Classifications
i. Introductions
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1. Different from National Origin Classifications because this refers to
discrimination against noncitizens, not targeted against a specific country
that a person, or his ancestors, comes from
2. “No person,” as stated in the 14th amendment has been interpreted to not
be specific to citizens (Yick Wo v. Hopkins)
3. State and local laws can be challenged based on equal protection AND
preemption (federal immigration laws wholly occupy the field and
preempt state efforts to regulate immigration)
ii. Strict scrutiny standard
1. Prior to Graham, the Court had been extremely deferential, so long as
discrimination related to a “special public interest”
2. Graham v. Richardson: Court applied strict scrutiny and declared
unconstitutional a PA law that made noncitizens ineligible to receive
public assistance and a AZ law that limited receipt of benefits to citizens
or 15 year residents; Court stated that “aliens as a class are a prime
example of a ‘discrete and insular minority for whom heightened judicial
solicitude is appropriate’”
3. Later applied Graham to Sugarman v. Dougall (invalidated a NY law
that prevented aliens from holding civil service jobs) and In re Griffiths
(invalidated a state law that excluded aliens from being licensed as
attorneys)
iii. Exceptions to strict scrutiny standard
1. “Governmental function”
a. Rational review standard used when classification is related to
self-government and the democratic process
b. Foley v. Connelie: applied rational basis test to uphold a state
law that required citizenship in order for a person to be a police
officer, emphasizing that police officers are integral to selfgovernment and enforce the laws that are the product of the
democratic process; a state may “confine the performance of this
important public responsibility to citizens of the U.S.”
c. Ambach v. Norwick: upheld a state law that required citizenship
for a person to be an elementary or secondary school teacher,
stating that teachers are integral to self-government because they
are responsible for inculcating democratic values in youth; states
thus have a legitimate interest in excluding aliens from
elementary and secondary school classrooms
d. Cabell v. Chavez-Salido: applied Foley and Ambach to hold that
a state may require citizenship for probation officers because
they serve as both law enforcement officers and also as teachers
e. Bernal v. Fainter: Court did not apply rational basis test to a
state law that created a citizenship requirement in order for a
person to be a notary public, emphasizing that this is a narrow
exception that applies only if it is specifically tailored to those
who “participate directly in the formulation, execution, or review
of broad public policy, and hence perform functions that go to
the heard of representative government”
f. Overview of “Government Function” exception:
Classifications Upheld under Classifications Overturned
Rational Basis Test
under Strict Scrutiny
Voting
Attorney license
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Public Office
Jury Service
Government Jobs (police
officer, public school
teacher, probation officer)
Engineering
Notary Public
Government Jobs (state and
local civil service
Higher Education Financial
Aid
2. Congressionally approved discrimination
a. Generally, the Court has ruled that the federal government’s
plenary power to control immigration requires judicial deference
and that therefore only rational basis review is used if Congress
or a presidential order has created the alien classification
b. Mathews v. Diaz: upheld a federal statute that denied Medicaid
benefits to aliens unless they are LPRs and have resided at least
5 years in the U.S because it was not “wholly irrational” and
served the “legitimate” interests of the federal government in
preserving the fiscal integrity of the program; since decisions in
matters between the U.S. and alien visitors implicate relations
with foreign powers and must be defined in light of the changing
political and economic circumstances, “such decisions are
frequently of a character more appropriate to either the
Legislature or the Executive than to the Judiciary”
c. Hampton v. Wong: invalidated a federal civil service regulation
that denied employment to aliens because it was adopted by the
Civil Service Commission which had no involvement in making
decisions concerning immigration or foreign policy nor was
there anything to “indicate that the Commission actually made
any considered evaluation of the relative desirability of a simple
exclusionary rule…or the value…of enlarging the pool of
qualified employees”; thus the exception cannot be used for
decisions by federal administrative agencies, only Congress and
the president
iv. Undocumented aliens
1. Plyer v. Doe: overturned a Texas law that provided a free public
education for children of citizens and of documented aliens, but required
that undocumented aliens pay for their schooling by using a more
intermediate scrutiny analysis in evaluating the discrimination against
undocumented alien children with regard to education; “it hardly can be
argued rationally that anyone benefits from the creation within our
borders of a sub-class of illiterate persons many of whom will remain in
the State, adding to the problems and costs of both State and National
Governments attendant upon unemployment, welfare, and crime”
2. However, Courts will likely have the opportunity to reconsider Plyer as
states continue to adopt broad laws discriminating against undocumented
aliens, i.e. CA Prop 187
c. Gender Classifications
i. Like race classification, laws can be facially discriminatory or facially-neutral
(where you must show intent and effect by applying Feeney)
ii. Intermediate scrutiny standard for both gender classifications discriminating
against women and those discriminating against men
1. In 1971, in Reed v. Reed, the Court for the first time invalidated a gender
classification, applying only rational basis review, stating “a
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classification must be reasonable, not arbitrary and must rest upon some
ground of difference having a fair and substantial relation to that object
of the legislation, so that all persons similarly circumstanced shall be
treated alike”
2. Frontiero v. Richardson: level of scrutiny remained uncertain, as there
was no majority; the plurality argued for strict scrutiny, stating that
gender, like race, alienage, or national origin, are inherently suspect; one
of the concurrences argued that the Court should wait for the passage of
the Equal Rights Amendment, which ended up being 3 states short
3. Stanton v. Stanton: overturned a Utah law that required parents to
support their female children until 18, but male children until 21, stating
that the law was unconstitutional under any test because it was based on
“old notions” about social roles
4. Craig v. Boren: overturned an OK law that allowed women to buy 3.2%
alcohol beer at 18, but men at 21, stating that while traffic safety is an
important government objective, gender discrimination is not
substantially related to that objective
5. United States v. Virginia: applied intermediate scrutiny (women were
excluded from the VA Military Institute and provided the VA Women’s
Institute for Leadership at Mary Baldwin College as an alternative) and
stated that there must be an “exceedingly persuasive justification” for
gender classifications with the burden resting entirely on the State and
the justification must not rely on overbroad generalizations about the
different talents, capacities, or preferences of males and females,
emphasizing the successful gender integration of the federal military
academies
6. “Substantial relationship” often considers the
a. Reliance on stereotypes and overbroad generalizations
b. Use of gender as a proxy
c. Availability of gender-neutral alternatives
iii. But, when is gender classification discrimination?
1. Geduldig v. Aiello: upheld CA’s disability insurance system policy of
excluding pregnancy-related disabilities but including disabilities
affecting only men and applied the rational basis test (state has a
legitimate interest in maintaining the fiscal integrity of its program and
making choices in allocating its funds) because the program divides
recipients into two groups, pregnant women and non-pregnant persons,
both of which included women; this was effectively overruled by the
passage of the Pregnancy Discrimination Act
2. Bray v. Alexandria Women’s Health Clinic: invoked Geduldig when
evaluating is those blocking access to abortion clinics were engaged in a
form of gender discrimination, stating that the two categories were
persons protesting and persons receiving abortions and women were in
both categories
iv. Gender classifications benefiting women
1. Laws based on role stereotypes are generally NOT OKAY
a. Stereotype of economically dependent women and economically
independent men
i. Orr v. Orr: overturned AL law that allowed women, but
not men, to receive alimony, explaining that needy males
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could be helped along with needy females with little if
any additional burden
ii. Weinberger v. Wiesenfeld: overturned a provision of the
Social Security Act that allowed a widowed mother, but
not a widowed father, to receive benefits based on the
earning of the deceased spouse, stating that the law was
based on the stereotype “that male workers’ earnings are
vital to the support of their families, while the earnings
of female wage earners do not significantsly contribute
to their families’ support”
iii. Califano v. Goldfarb: overturned a provision in the
Federal Old-Age, Survivors and Disability Insurance
Benefits program whereby a woman automatically
would receive benefits based on the earnings of her
husband, but a man would receive such benefits only if
he could prove that he received at least half of his
support from his wife, stating that the law presumes that
wives are usually dependent
iv. Wengler v. Druggists Mutual Insurance Co.: overturned
a state law that automatically allowed widows benefits,
but only allowed widowers benefits if they proved that
they were dependent on their wives’ income or were
physically incapacitated
b. Stereotype about women and their roles in the family and the
economy
i. Mississippi University for Women v. Hogan: applying
intermediate scrutiny, the Court declared
unconstitutional a state nursing school that was available
only to women, stating that here the classification was
on designed to remedy past discrimination, but based on
an occupational stereotype
ii. Michael M. v. Superior Court of Sonoma County: upheld
CA’s statutory rape law that made men alone criminally
liable for the act of sexual intercourse, by stating that the
legislature acts well within its authority when it elects to
punish only the participant who suffers few of the
consequences of his conduct, unlike young females who
have the natural deterrence of pregnancy
iii. Rostker v. Goldberg: upheld male-only draft registration,
premised on the fact that women, unlike men, are not
eligible for combat and that Congress and the president
had evidenced an intent to retain that policy in the future
iv. These cases forced consideration of when biological
differences between men and women justify gender
discrimination
2. Gender classifications benefiting women as a remedy are OKAY
a. Califano v. Webster: upheld a provision in the Social Security
Act that calculated benefits for women in a more advantageous
way than was used for men, stating that the difference was not
based on stereotypes, but rather the permissible goal “of
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redressing our society’s longstanding disparate treatment of
women”
b. Thus, gender classification is okay when it operates “directly to
compensate women for past economic discrimination” and the
Court has yet to consider a constitutional challenge to an
affirmative action program designed to benefit women, which
would likely include a similar analysis as race-based affirmative
action
3. Gender classifications benefiting women because of biological
differences are OKAY
a. Nguyen v. Immigration and Naturalization Service: allowed a
difference in INS rules favoring mothers over fathers because of
the government’s interest in being certainty that there is a
biological relationship between the parent and child and the
greater opportunity that mothers have in establishing a
relationship with their children (case involved how children can
become citizens when born outside the U.S. to unmarried parents
and one of their parents is a citizen and one is not, with greater
requirements if the citizen parent if the father)
b. Allowed gender classification based on biological difference, but
there remains an issue as to whether these differences are real or
social constructs and whether they should matter (Nguyen
dissent)
d. Other types of Classification
i. Non-Marital Children Classification
1. Intermediate scrutiny standard
a. Clark v. Jeter: expressly stated that intermediate scrutiny is used
for discrimination based on illegitimacy, justified by the
unfairness of penalizing children because their parents were not
married, and overturned a state law that required a nonmarital
child to establish paternity within 6 years in order to seek
support from his father
2. Laws denying benefits to all nonmarital children
a. Court consistently found such laws as violating equal protection
b. Levy v. Louisiana: overturned a state law that prevented
nonmarital children from suing under a wrongful death statute
for losses because of a mother’s death
c. Glona v. American Guarantee & Liability Insurance Co.:
overturned a state law that prevented parents from suing for the
wrongful death of their nonmarital children
d. New Jersey Welfare Rights Organization v. Cahill: overturned a
state law that limited receipt of public assistance to families with
two married adults and a child
e. Gomez v. Perez: overturned a TX law that created a legal
obligation for fathers to support their marital children, but no
similar duty with regard to nonmarital children
f. Trimble v. Gordon: overturned a IL law that allowed marital
children to inherit from either parent who died intestate, but
nonmarital children from inheriting only from their mothers
3. Laws that provide a benefit to some nonmarital children while denying
the benefit to other nonmarital children
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a. Court applies intermediate scrutiny on a case-by-case basis
b. Lalli v. Lalli: upheld a state law that provided that a nonmarital
child could inherit from his or her father only if paternity was
established during the father’s lifetime, stating that the state had
an important interest in preventing fraud and that requiring
paternity to be established during the father’s lifetime was
substantially related to that objective
c. Labine v. Vincent: upheld a state law that denied inheritance
from a nonmarital father unless the child had been formally
acknowledged by the father during the father’s life, accepting the
state’s argument that is the same as in Lalli
d. Mathews v. Lucas: upheld a provision of the Social Security Act
that allowed children to receive survivors’ benefits only if they
could establish both paternity and that the father was providing
financial support (which presumed that all marital children were
dependent, but not all nonmarital children were), finding that the
law did not preclude any child from receiving benefits and
because it allowed the government to reduce its administrative
burdens
e. Jiminez v. Weinberger: overturned a provision of the Social
Security Act that allowed intestate inheritance of disability
benefits by all martial children and by nonmarital children who
had been “legitimated,” i.e. living with or supported by the
father, explaining that “it would discriminate between two subclasses of afterborn illegitimates without any basis for the
distinction since the potential for spurious claims is exactly the
same as to both subclasses”
ii. Age Classifications
1. Rational basis test standard
a. Massachussetts Board of Retirement v. Murgia: applied rational
basis test, stating that “even old age does not define a ‘discrete
and insular’ group in need of extraordinary protection from the
political process. Instead, it marks a stage that each of us will
reach if we live our normal span”, to uphold a state law that
required police officers to retire at 50, finding that the fitness for
uniformed work presumptively has diminished with age and is
thus rationally related to the State’s objective
b. Vance v. Bradley: upheld a federal law that mandated retirement
at 60 for participants in the Foreign Service Retirement System,
stating that the federal government had a legitimate interest in
having a vigorous foreign service and that a mandatory
retirement age was rationally related to that end
2. Both Murgia and Vance were significantly over- and under- inclusive
because each required retirement for many who were still capable of
performing competently and had no effect on those younger who had
already declined in mental and physical reliability, but, again, the Court
said “perfection is by no means required”; the dissent in Murgia also
argues that the existing testing is adequate to determine the fitness of an
older officer
3. Although rational basis test makes it very difficult to challenge age
classifications under the Constitution, the federal Age Discrimination in
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Employment Act prohibits age discrimination and specifically outlaw
mandatory retirement ages
iii. Discrimination based on Disability
1. Rational basis test standard
a. City of Cleburne, Texas v. Cleburne Living Center, Inc.:
overturned a city ordinance that required a special permit for the
operation of a group home for the mentally disabled, finding that
the potential harassment of occupants by junior high students, its
location on a 5oo hundred year old plain, and the concern over
the number who would live in the home were not legitimate
government purposes
b. Heller v. Doe: upheld a state law that allowed mentally retarded
individuals to be civilly committed if there was clear and
convincing evidence justifying institutionalization, but required
that there be proof beyond a reasonable doubt before an
individual could be committed because of mental illness by
concluding that there were reasonable distinctions between the
mentally retarded and the mentally ill
2. The Americans with Disabilities Act broadly prohibits discrimination
based on disability beyond what is covered by the application of rational
basis review
iv. Wealth Discrimination
1. Rational basis test standard
a. Although it appeared that the Court would use heightened
scrutiny (Griffin v. Illinois and Harper v. Virginia Board of
Elections), it has since held that only rational basis review
should be used for wealth classifications
b. Dandridge v. Williams: upheld a law that put a cap on welfare
benefits to families regardless of their size, stating that rational
basis review was appropriate because the law related to
“economics and social welfare” and accepting the state’s interest
in allocating scarce public benefits as sufficient to justify the law
c. San Antonio School District v. Rodriguez: upheld a TX system of
relying heavily on local property taxes to pay for education by
rejecting the claim that the poor should be a suspect class and
finding that there is no basis for assuming that the poorest people
are concentrated in the poorest districts and that the lack of
personal resources has not occasioned an absolute deprivation of
the desired benefit
d. Maher v. Roe: rejected an argument that the government violated
equal protection when it refused to fund abortions, even though
it was paying for childbirth and other medical care costs, stating
that poverty is not immutable and that most discrimination
against the poor is a result of the effects of the law, rather than a
product of intentional discrimination
v. Sexual Orientation Classifications
1. Rational basis standard – Goodridge v. Department of Public Health:
MA Supreme Court ruled that the state may not deny the protections,
benefits, and obligations conferred by civil marriage to two individuals
of the same sex who wish to marry, applying rational basis test standard
and concluding that the government’s interests of providing a "favorable
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IV.
setting for procreation," ensuring the optimal setting for child rearing,
which the department defines as "a two-parent family with one parent of
each sex," and preserving scarce State and private financial resources did
not serve a legitimate public purpose
2. Strict scrutiny standard – In re Marriage Cases: CA Supreme Court ruled
that the state laws limiting marriage to opposite-sex couples violate the
rights of same-sex couples and may not be used to preclude them from
marriage, applying the strict scrutiny standard (because the statutes in
question properly must be understood as classifying or discriminating on
the basis of sexual orientation, a characteristic that we conclude
represents — like gender, race, and religion — a constitutionally suspect
basis upon which to impose differential treatment and the differential
treatment at issue impinges upon a same-sex couple's fundamental
interest in having their family relationship accorded the same respect and
dignity enjoyed by an opposite-sex couple) and concluding that the
exclusion of same-sex couples from the designation of marriage clearly
is not necessary in order to afford full protection to all of the rights and
benefits that currently are enjoyed by married opposite-sex couples
3. Intermediate scrutiny standard – Kerrigan v. Commissioner of Public
Health: CT Supreme Court ruled that the state’s statutory prohibition
against same sex marriage violates their rights to substantive due process
and equal protection, applying the intermediate scrutiny standard of
review (because the history of pernicious discrimination faced by gay
men and lesbians and the institution of marriage carries with it a status
and significance that the newly created classification of civil unions does
not embody, the segregation of heterosexual and homosexual couples
into separate institutions constitutes a cognizable harm AND because the
state scheme discriminates on the basis of sexual orientation and sexual
orientation is semi-suspect class just like gender) and concluding that the
state failed to provide sufficient justification for excluding same sex
couples from the institution of marriage
4. Varnum v. Brien: IA Supreme Court overturned a state statute that
defined marriage only as a union between a man and a woman, applying
intermediate scrutiny to find that the exclusion of gay and lesbian people
from the institution of civil marriage does not substantially further any
important governmental objective
Fundamental Rights (see Con Law I)
a. Equal protection clause is applied for fundamental rights
b. Right to vote
i. Strict scrutiny standard
1. For restrictions such as poll taxes, property ownership requirements,
durational residency requirements, literacy tests
2. For vote dilution, i.e. malapportionment
ii. Exception: Salyer Land Co. v. Tulare Lake Basin Water Storage District and Ball
v. James where the Court applied rational basis test standard to allow property
ownership requirement for voting in a water district election
Freedom of Expression
I.
Introduction
a. Although the 1st amendment is written in absolute language that Congress shall make “no
law,” the Court has never accepted the view that it prohibits all government regulation of
13
II.
expression; as such, the Court inevitably must make value choices as to what speech is
protected, under what circumstances, and when and how the government may regulate
b. Theories of Free Speech
i. Self-governance
ii. Discovering truth
iii. Advancing autonomy
iv. Promoting Tolerance
Methodology
a. Distinction between Content-Based and Content-Neutral Laws
i. Importance
1. Turner Broadcasting System, Inc. v. Federal Communications
Commission: established the general rule that content-based restrictions
on speech must meet strict scrutiny, while content-neutral regulation only
need meet intermediate scrutiny
2. “Laws of this sort pose the inherent risk that the Government seeks not to
advance a legitimate regulatory goal, but to suppress unpopular ideas or
information or to manipulate the public debate through coercion rather
than persuasion”
3. Hence, the Court endorsed a two-tier system of review
a. Content-based generally has a strict scrutiny review
b. Content-neutral generally has an alternate intermediate scrutiny
review
ii. Determining whether a law is content-based
1. Viewpoint neutral: government cannot regulate speech based on the
ideology of the message
a. Boos v. Berry: overturned a D.C. ordinance that prohibited the
display of signs critical of a foreign government within 500 feet
of that government’s embassy, as it drew a distinction among
speech based on the viewpoint expressed
2. Subject-matter neutral: government cannot regulate speech based on the
topic of the speech
a. Carey v. Brown: overturned a Chicago ordinance prohibiting all
picketing in residential neighborhoods unless it was labor
picketing connected to a place of employment, as the kind of
speech was being regulated
3. Republican Party of Minnesota v. White: overturned a MN law that
prohibited candidates for elected judicial office from making statements
about disputed legal or political issues, stating that the content-based
restriction failed to meet strict scrutiny, rejecting the argument that such
statements would undermine judicial impartiality
iii. Applying the distinction
1. Does a permissible purpose for a law prevent it from being deemed
content-based, even if a content restriction is on the face of the law?
a. City of Renton v. Playtime Theaters, Inc.: treated the law (zoning
ordinance prohibited adult motion picture theaters from locating
within 1000 feet of any residential zone, single or multifamily
dwelling, church, park or school) as content neutral because it
said that the law was motivated by a desire to control the
secondary effects of adult movie theaters, such as crime, and not
to restrict the speech
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b. Renton adds the question of whether a law is justified by a
sufficient purpose to the question of whether a law is contentbased or content-neutral
c. The Court has been inconsistent in applying Renton
i. In Boos, the Court distinguished Renton because the
ordinance was justified only be reference to the content
of the speech
ii. In City of Cincinnati v. Discovery Network, the Court
articulates that “there are no secondary effects
attributable to…newsracks [containing commercial
handbills] that distinguish them from the newsracks
Cincinnati permits to remain on its sidewalks
iii. In contrast, in City of Erie v. Pap’s AM, the Court
concluded that the city’s goal of preventing the
secondary effects of nude dancing were sufficient to
make the law content-neutral
2. When can the government make choices based on the content of the
speech?
a. In certain situations, this is inevitable, but the government must
still remain viewpoint neutral
b. National Endowment for the Arts v. Finley: statute was amended
in 1990 to provide that the NEA should “take into consideration
general standards of decency and respect for the diverse beliefs
and values of the American public”; the Court states that any
content-based considerations that may be taken into account in
the grant-making process are of the nature of arts funding and
that the legislation was aimed at reforming procedures rather
than precluding speech
c. United States v. American Library Association, Inc.: upheld a
federal law requiring libraries receiving federal funds to install
filters to block sexually explicit material, stressing that libraries
need not buy all materials or allow access to all materials on the
Internet and emphasizing that under the law, patrons may request
librarians to lift filters
b. Vagueness/Overbreadth: facial challenges
i. Vagueness: a reasonable person cannot tell what speech is prohibited and what
speech is permitted
1. Coates v. City of Cincinnati: Cincinnati ordinance which made it
criminal for “three or more persons to assemble…on any of the
sidewalks…and there conduct themselves in a manner annoying to
persons passing by…” was found unconstitutionally vague because it
subjects the exercise of the right of assembly to an unascertainable
standard and unconstitutionally broad because it authorizes the
punishment of constitutionally protected conduct
2. Baggett v. Bullitt: overturned a state’s loyalty oath that prevented any
“subversive” person from being employed in the state and required a
person to swear that he was not such an individual or a part of any
subversive organization because the ambiguities inherent in the term
“subversive” and in the language of the statute gave individuals little
guidance as to what speech and associational activities were proscribed
15
3. Additionally, unduly vague laws violate due process whether or not
speech is regulated
ii. Overbreadth: a law regulates substantially more speech than the Constitution
allows to be regulated and a person to whom the law constitutionally can be
applied can argue that it would be unconstitutional as applied to others
1. Schad v. Borough of Mount Ephraim: an adult bookstore challenged a
city ordinance prohibited all live entertainment because the law
prohibited much more than the nude dancers at the bookstore
2. Thus, there are two major aspects to the overbreadth doctrine:
a. A law must restrict significantly more speech than the
Constitution allows to be controlled
i. Broadrick v. Oklahoma: upheld an OK law that
prohibited political activities by government employees
because it was not substantially overbroad but that
particular applications of the law could be declared
unconstitutional in future cases
ii. City Council v. Taxpayers for Vincent: upheld a
municipal ordinance that prohibited the posting of sign
on public property, emphasizing that there must be a
realistic danger that the statute itself will significantly
compromise recognized 1st amendment protections of
parties not before the Court for it to be facially
challenged on overbreadth grounds (substantial
overbreadth)
iii. Houston v. Hill: overturned an ordinance that made it
unlawful to interrupt police officers in the performance
of their duties, stating that the law criminalizes a
substantial amount of constitutionally protected speech
and accords the police unconstitutional discretion in
enforcement
iv. New York v. Ferber: upheld a state law prohibiting child
pornography, although it acknowledged that the law
could be applied to material with serious literary,
scientific, or educational value, because these
applications would not “amount to more than a tiny
fraction of the materials within the statute’s reach”
v. So, sometimes the Court will uphold substantially
overbroad laws because applications could be dealt with
on a case-by-case basis, rather than by declaring the
entire law unconstitutional
b. A person to whom the law constitutionally may be applied can
argue that it would be unconstitutional as applied to others (an
exception to the general standing principle)
i. Secretary of State v. J. H. Munson Co.: granted standing
to a professional fundraiser whose clients were not
charities party to the lawsuit brought against a MD
statute prohibiting charitable organizations from
soliciting funds unless at least 75% of their revenue was
used for charitable purposes, articulating that the
overbreadth doctrine is “strong medicine” because it
permits individuals standing to raise the claims of others
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III.
not before the Court, which is necessary because persons
whose expression is constitutionally protected may well
refrain from exercising their rights for fear of criminal
sanctions provided by a statute susceptible of application
to protected expression
ii. This rationale explains why overbreadth does not apply
to commercial speech (see Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc.)
iii. Because the doctrine is perceived as “strong medicine”
the Court avoids invalidating laws by allowing courts to
construe statutes narrowly and thus avoid overbreadth
1. Osborne v. Ohio: upheld an OH law prohibiting
private possession of child pornography and
outlawing possession of nude photographs
because the OH Supreme Court adopted a
narrowing construction so that it avoided
penalizing persons for viewing or possessing
innocuous photographs of naked children
2. Gooding v. Wilson: overturned a GA law
making it a crime for any person who uses
opprobrious words or abusive language tending
to cause a breach of the peace, stating that it
found no limiting construction by GA courts to
apply it only to speech not protected by the 1st
and 14th amendments
iii. Relationship between vagueness and overbreadth
1. Laws are often challenged under both doctrines, but they are best
understood as overlapping, not identical
2. Board of Airport Commissioners of the City of Los Angeles v. Jews for
Jesus, Inc.: overturned an ordinance prohibiting any person to engage in
1st amendment activities within the Central Terminal area at LAX,
finding that the law was impermissibly overbroad because it prohibited
all protected expression, but not vague
3. Whereas in Coates, the ordinance was vague because it subjects the
exercise of the right of assembly to an unascertainable standard AND
overbroad because it authorizes the punishment of constitutionally
protected conduct
Types of Unprotected and Less Protected Speech
a. Introduction
i. These categories are based on the subject matter of the speech and thus represent
an exception to the usual rule that content-based regulation must meet strict
scrutiny
ii. Until recently, the conventional view was that laws in these area would be upheld
so long as they met the rational basis test
b. Incitement of Illegal Activity (speech advocating illegal acts or the overthrow of the
government)
i. Poses a basic value questions of how should society balance its need for social
order against its desire to protect freedom of speech
ii. The “Clear and Present Danger” test
1. Schenck v. United States: ruled that the circulation of a leaflet advocating
repealing the draft law was indeed violative of the 13th amendment,
17
stating that although in “many place s and in ordinary times” the speech
would be protected, the wartime circumstances were crucial and that the
“question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a
right to prevent”
2. Frohwerk v. United States: affirmed convictions, under the 1917 Act, of
two individuals who published a German language newspaper criticizing
the war, acknowledging that while there was no evidence that the articles
had any adverse effect on the war effort, but that this was relied upon by
those who sent the paper out
3. Debs v. United States: affirmed conviction of Socialist Party leader who
advocated socialism and mildly criticized the draft in a speech, stating
that the speech was not protected if “one purpose of the speech, whether
incidental or not does not matter, was to oppose…this war, and if, in all
the circumstances, that would be its probably effect”
4. Abrams v. United States: affirmed the convictions of a group of Russian
immigrants who circulated leaflets objecting to America sending troops
to Eastern Europe after the Russian Revolution, stating that they were
convicted of encouraging resistance and conspiracy to urge curtailment
of the production of war materials; Holmes’s dissent articulated the
marketplace of ideas metaphor for the 1st amendments, stating that “it is
only the present danger of immediate evil or an intent to bring it that
warrants Congress in setting a limit to the expression of opinion” and
that the “power undoubtedly is great in time of war than in time of
peace” but that Abrams did not pose such a danger
5. So, the clear and danger test poses three requirements:
a. Likelihood of
b. Imminent
c. Significant harm
iii. The Reasonableness approach
1. During the 1920s and 30s, the Court appeared to use the reasonableness
approach; it upheld laws and their applications so long as the
government’s law and prosecution were reasonable
2. Gitlow v. New York: affirmed a conviction of an individual for published
the “Left Wing Manifesto” and violating the NY statute prohibiting
advocating overthrowing and overturning organized government by
force, violence, and unlawful means, stating that by enacting the statute,
the state legislature had determined that such utterances were so inimical
to the general welfare and involve such danger of substantive evil that
they may be penalized in the exercise of political power; Holmes’ dissent
urged the use of the clear and present danger test
3. Whitney v. California: affirmed the conviction of an individual for
attending a meeting to organize a branch of the Communist Labor Party
again proclaiming the need for deference to the legislature and stating
that a state in the exercise of its police power may punish those who
abuse freedom of speech to involve danger to the public peace and
security; Brandeis and Holmes’ concurrence again argued for the clear
and present danger approach
4. The Court did overturn some convictions on the rationale that they were
unreasonable (Fiske v. Kansas, where there were no declarations by the
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defendant, or his organization, urging unlawful acts, and DeJonge v.
Oregon, where no one at the meeting advocated illegal acts or the
overthrow of the government)
iv. The Risk Formula approach
1. Dennis v. United States: articulated, in a plurality decision, that the
appropriate test was the clear and present danger approach and that “in
each case [courts] must ask whether the gravity of the ‘evil,’ discounted
by its improbability, justifies such invasion of free speech as is necessary
to avoid the danger,” stating that the teaching of four books written by
Stalin, Marx and Engels, and Lenin was a great enough harm (instead of
probability and imminence) to warrant the limitation of speech;
concurrences argued the other two tests; Black and Douglas’s dissents
each emphasized that the convictions were solely for engaging in speech
2. Yates v. United States: overturned the convictions of several individuals
for conspiracy to violate the Smith Act, distinguishing Dennis by stating
that there was a crucial “distinction between advocacy of abstract
doctrine and advocacy directed at promoting unlawful action”
3. Scales v. United States: upheld a conviction for being a member of an
organization that advocates the overthrow of the government, stressing
that there must be proof that an individual actively affiliated with the
group, knowing of its illegal objectives, and with the specific intent of
furthering those goals
4. Noto v. United States: reversed a conviction under the Smith Act for
conspiracy because of inadequate evidence to meet these requirements
v. The Brandenburg Test
1. By the 1960s, the Court appeared to be much more protective of speech
(Bond v. Floyd, where Court held that an assembly seat could not be
refused because of Bond’s support for a statement strongly critical of the
Vietnam War and the draft, and Watts v. United States, where the Court
reversed conviction of a man for violating the law that made it illegal to
threaten the President, stating that Watts’s statement was a political
hyperbole and not a real theat)
2. Brandenburg v. Ohio: overturned a conviction of a Ku Klux Klan leader
based on a film of a rally, which included racist and anti-Semitic speech
and a number of firearms, stating that Dennis and the subsequent cases
“do not permit a State to forbid or proscribe advocacy of the use of force
or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action”
3. So, the Brandenburg test poses three requirements:
a. Imminent harm
b. A likelihood of producing illegal action
c. An intent to cause imminent illegality
4. Hess v. Indiana: overturned the conviction of a man for disorderly
conduct who declared “We’ll take the fucking street later” after the
police had cleared a demonstration, stating that there was no evidence
that his words were intended to produce, and likely to produce, imminent
disorder
5. NAACP v. Claiborne Hardware: overturned a judgment against the
NAACP for a boycott of white-owned businesses that it alleged engaged
in racial discrimination, explaining that the emotionally charged rhetoric
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of Charles Evers’ speeches did not transcend the bounds of protected
speech set forth in Brandenburg
6. However, the Court has still held that there is no 1st amendment
protection for a “true” threat, but there’s a circuit split as to the definition
of a “true threat”; some say it is determined from the perspective of the
listener (9th), while others have said that it is from the perspective of the
reasonable speaker (2nd)
c. Fighting Words (speech directed at another and likely to provoke a violent response)
i. Chaplinsky v. New Hampshire: upheld a man’s conviction for giving a speech
denouncing other religions as a “racket”, stating that the right to free speech is
not absolute at all times and certain classes, including insulting or fighting words,
those which by their very utterance inflict injury or tend to incite an immediate
breach of the peace, are not protected by the 1st amendment and that “such
utterances are no essential part of any exposition of ideas” and any benefit is
clearly outweighed by the social interest in order and morality
ii. Thus, Chaplinsky seems to recognize two situations where speech constituted
fighting words:
1. Where it is likely to case a violent response against the speaker
2. Where it is an insult likely to inflict immediate emotional harm
iii. But, the Court has never upheld a fighting words conviction since, using three
techniques to overturn them
1. Narrowing the interpretation of the fighting words doctrine
a. Street v. New York: reversed the conviction of a man who burned
an American flag after learning that James Meredith had been
shot, stating that while some might have found the speech
inherently inflammatory, it was not fighting words, which are
only a “small class” of words
b. Cohen v. California: reversed the conviction of a man who had
disturbed the peace for having in a courthouse a jacket that had
on its back the words, “Fuck the draft,” holding that unprotected
fighting words only occur if the speech is directed to a specific
person and likely to provoke violent response and elaborating
that “it was clearly not directed to the person of the hearer” and
that “no individual actually or likely to be present could
reasonably have regarded the words on appellant’s jacket as a
direct personal insult”
c. Texas v. Johnson: again held that flag burning was
constitutionally protected, as it is not directed at a particular
person and no reasonable onlooker would take it as “a direct
personal insult or an invitation to exchange fisticuffs”
2. Finding laws to be unconstitutionally vague or overbroad
a. Gooding v. Wilson: (see analysis under vagueness/overbreadth)
b. Rosenfeld v. New Jersey, Lewis v. City of New Orleans, and
Brown v. Oklahoma: all involved the angry use of profanity in a
manner likely to provoke an audience; Court applied Gooding
and overturned convictions, making it clear that speech is
protected even if it is uttered in anger, filled with profanities, and
likely to anger the audience
c. These cases indicate that a fighting words law will be upheld
only if it is narrowly tailored to apply just to speech that is not
protected by the 1st amendment
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3. Finding laws to be impermissible content-based restrictions of speech
a. R.A.V. v. City of St. Paul, Minnesota:
i. Ordinance prohibited placing on public or private
property symbols, objects, characterizations, or graffiti,
“including, but not limited to, a burning cross or Nazi
swastika, which one knows or has reasonable ground to
know arouses anger, alarm or resentment in others on the
basis of race, color, creed, religion, or gender”
ii. MN Supreme Court narrowly constructed it so that it
applied only to fighting words or incitement not
protected by the 1st amendment
iii. Court stated that there was not an absolute prohibition of
content-based discrimination within categories of
unprotected speech; such distinctions will have to meet
strict scrutiny, subject to two exceptions:
1. If it directly advances the reason why the
category of speech is unprotected, i.e. an
obscenity law could prohibit the most sexually
explicit material without having to ban
everything that is obscene
2. If it is directed at remedying secondary effects
of speech and is justified without respect to
content
iv. Thus, the Court invalidated the ordinance because it
drew a distinction among expressions of hate; it
prohibited hate speech based on race, religion, or gender,
but not based on political affiliation or sexual orientation
v. Concurrences also argued overbreadth or that the
government should have latitude to draw distinctions
within categories of unprotected speech
b. R.A.V. can be appraised on many levels
i. Fighting words law will be upheld only if it does not
draw content-based distinctions among types of speech
(very difficult to meet, as it would likely then be invalid
for vagueness or overbreadth)
ii. There is a strong presumption against content-based
discrimination within categories of unprotected speech
d. Hostile Audience
i. In some cases, the Court applied the clear and present danger test in dealing with
the issue of when the government may punish individuals for a speech that
provokes a hostile audience reaction
1. Terminiello v. Chicago: overturned a conviction for disturbing the peace
because it was not shown that the speech, in which Terminiello attacked
his opponents as “slimy scum,” “snakes,” and “bedbugs,” posed a clear
and present danger of lawlessness
2. Cantwell v. Connecticut: overturned a conviction for disturbing the peace
because playing a phonograph record on a street corned that attacked the
Roman Catholic religion did not pose “such clear and present menace to
public peace and order”
ii. Feiner v. New York: an individual was convicted for a speech that he gave that
sharply criticized the president and local political officials for their inadequate
21
record on civil rights; Fiener was arrested after refusing police’s request to leave
when the crowd seemed angered by the speech
1. Majority: upheld the conviction for disturbing the peace, applying the
clear and present danger test and concluding that “here the speaker
passes the bounds of argument or persuasion and undertakes incitement
to riot,” rendering the police powerless to prevent a breach of the peace
2. Dissent: rejected the opinion that the police had no obligation to protect
petitioner’s right to talk and that, in the name of preserving order, must
first make all reasonable efforts to protect a lawful public speaker
iii. Edwards v. South Carolina: overturned a conviction for civil rights protestors ho
had staged a march to the SC capitol, emphasizing that “police protection…was
at all times sufficient to meet any foreseeable possibility of disorder” and
distinguishing Feiner based on the absence on any violence or threats of violence
iv. Cox v. Louisiana: overturned a conviction of an individual who gave a speech
objecting to the racial segregation of lunch counters and urged a sit-in, which
some found inflammatory, on the grounds that the police had the ability to
control the crowd
v. Gregory v. City of Chicago: overturned convictions for disturbing the peace for a
group of civil rights demonstrators who had been arrested when an angry group
threatened the marchers because the law did not limit convictions to instances
where there was a threat of imminent violence, the police have made all
reasonable efforts to protect the demonstrators, and the police have requested that
the demonstration be stopped
e. Racist Speech
i. Beauharnais v. Illinois: upheld a state law that prohibited any publication that
portrayed “depravity, criminality, unchastity, or lack of virtue of a class of
citizens, of any race, color, creed, or religion [which exposes such citizens] to
contempt, derision, or obloquy or which is productive of breach of the peace or
riots,” stating that just as a state could punish defamation, so may a state “punish
the same utterance directed at a defined group” (group libel)
1. Based on the assumption that defamation liability is unlimited by the 1st
amendment, which has since been rejected by New York Time v. Sullivan
2. Additionally, R.A.V. indicates that expression of hate is not a category of
speech entirely outside protection
ii. Virginia v. Black: VA law prohibited cross burning “with an intent to intimidate a
person or group of persons” and provided that an act of cross burning was “prima
facie evidence of an intent to intimidate a person or a group of persons”; Court
held that:
1. Government cannot prohibit all cross burning because it’s a symbolic
expression and the government cannot ban symbols just because they are
powerful and offensive; dissent argued that cross burning is conduct, not
speech, and is inherently threatening and intimidating
2. Cross burning done with the intent to threaten or intimidate – that
constitutes a “true threat”, which is a statement when the speaker means
to communicate a serious intent to commit an act of unlawful violence to
a particular individual or group of individuals, but need not actually
intend to carry out the threat – is not protected by the 1st amendment;
3. There must be proof in the individual case that the speech was a true
threat
f. Obscenity
i. Unprotected by the 1st amendment
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1. Roth v. United States: held that obscene material, which is material that
deals with sex in a manner appealing to the prurient interest, is a category
of unprotected speech because it is utterly without redeeming social
importance
2. Paris Adult Theatre I v. Slaton: reaffirmed Roth and elaborated that a
community should be able to determine its moral environment and that
obscenity causes antisocial behavior, like crime
ii. But what is considered “obscene”?
1. Miller v. California: reaffirmed Roth and formulated the test for
obscenity
a. The material must appeal to the prurient interest (that which
excites lustful or lascivious thoughts) for the average person,
applying contemporary community standards
b. The material must be patently offensive under the law
prohibiting obscenity, applying community standards
c. The material must, taken as a whole, lack serious redeeming
artistic, literary, political, or scientific value, applying national
standards of whether a reasonable person would find such value
in the material
g. Child Pornography
i. New York v. Ferber: upheld the conviction of a man who sold two films showing
young boys masturbating, stating that the government may prohibit the
exhibition, sale, or distribution of child pornography even if it does not meet the
test for obscenity
ii. United States v. Williams: upheld the provision in the PROTECT Act that
proscribed the pandering of material that is believed to be, or claimed to be,
illegal child pornography, stating that the statute was not overbroad and noting
that illegal actions are excluded from 1st amendment protections and that child
pornography is an unprotected class of speech
h. Non-Obscene Sexual Expression
i. Protected but Low-Value Sexual Speech
1. Zoning ordinances
a. Young v. American Mini Theatres, Inc.: upheld a city’s ordinance
that limited the number of adult theaters that could be on any
block and that prevented such enterprises from being in
residential areas, stating that the sexually explicit material should
be regarded as “low value” speech and thus more susceptible to
government regulation and “that the State may legitimately use
the content of these materials as the basis for placing them in a
different classification from other motion pictures”
b. City of Renton v. Playtime Theatres, Inc.: applying Young,
upheld a zoning ordinance that excluded adult motion picture
theaters from being within 1000 feet of any residential zone,
church, park, or school, effectively excluding such theaters from
about 95% of the land in the city
c. City of Los Angeles v. Alameda Book, Inc.: upheld an ordinance
that prohibits “the establishment or maintenance of more than
one adult entertainment business in the same building, structure,
or portion thereof,” stating that the city could rely on a 1977
study showing that a concentration of adult businesses increases
crime
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2. Nude dancing
a. Barnes v. Glen Theatre, Inc.: ruled that an IN statute that
prohibited public dancing could be used to require that female
dancers must, at a minimum, wear “pasties” and a “G-string”
when they dance, in the plurality noting that nude dancing is
expressive conduct within the outer perimeters of the 1st
amendment and holding that the prohibition of nude dancing
served the goal of protecting societal order and morality”;
concurrences argued that conduct is not the subject of the 1st
amendment or focused on the secondary effects of nude dancing;
the dissent emphasized that stopping nude dancing was
suppressing a message
b. City of Erie v. Pap’s AM: reaffirmed Barnes, but based on the
plurality’s reasoning that the city was justified in prohibiting
nude dancing so as to stop the undesirable secondary effect, such
as crime; dissent stressed the absence of any proof that nude
dancing causes the secondary effects
c. Thus, the government may prohibit nude dancing and may rely
on the experience of other cities and their own observations to
reasonably conclude that nude dancing causes secondary effects
3. The Court has never defined the content of this category of low-value
sexually-oriented speech, but it has made clear that nudity alone is not
enough to place speech in this category
ii. Government Techniques for Controlling Obscenity and Child Pornography
1. Stanley v. Georgia: held that “the mere private possession of obscene
matter cannot constitutionally be made a crime,” emphasizing that a
person in his own home has the right to choose what to read of watch
2. U.S. v. Reidel: held that Stanley did not protect the right to receive
obscene materials
3. Osborne v. Ohio: held that the government may prohibit and punish the
private possession of child pornography, emphasizing that the
government has an important interest in attempting to dry up the market
for child pornography so as to protect children and therefore punish even
private possession
4. Thus, the government can prohibit the sale, distribution, and exhibition
of obscene materials even to willing recipients, but cannot prohibit
private possession, with the exception of child pornography
iii. Profanity and “Indecent” Speech
1. Cohen v. California: reversed the conviction of a man who had disturbed
the peace for having in a courthouse a jacket that had on its back the
words, “Fuck the draft,” stating that the government may not prohibit or
punish speech simply because others might find it offensive
2. However, there are some media-based exceptions where the government
can prohibit profane and “indecent” speech
a. Broadcast Media
i. FCC v. Pacifica Foundation: upheld the ability of the
FCC to prohibit and punish indecent language over the
television and radio because the broadcast media are
uniquely pervasive and intrusive into the home and that
warnings were insufficient because people might tune in
during the middle of a broadcast
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ii. FCC v. Fox Television Stations: pending case, No. 07582
iii. FCC Broadcast Restrictions:
1. “Indecency” is “language or material that, in
context, depicts of describes, in terms patently
offensive as measured by contemporary
community standards for the broadcast medium,
sexual or excretory organs or activities”
2. “Profanity” includes language “so grossly
offensive to members of the public who actually
hear it as to amount to a nuisance”
3. Indecent language and profanity is prohibited
from 6am to 10pm
b. Cable Television
i. Denver Area Educational Telecommunications
Consortium, Inc. v. FCC
1. Upheld the first provision of the Cable
Television Consumer Protection and
Competition Act of 1992, which allowed cable
systems to refuse to carry sexually explicit
broadcasting, because it serves an extremely
important justification – the need to protect
children from exposure to patently offensive
sex-related material
2. Overturned the second part, which required that
sexual material be segregated and available only
on request, stating that less restrictive
alternatives could protect children, such as a
system where parents could receive blocking by
telephone or employ lockboxes
3. Overturned the third provision, which permitted
cable systems to prohibit sexually explicit
material over public access channels, finding
that there was not proof of “a compelling need,
nationally, to protect children from significantly
harmful material” on there channels
ii. United States v. Playboy Entertainment Group: applied
strict scrutiny to declare unconstitutional a provision of
the Cable Act that had a time blocking regulation on
sexual speech, emphasizing that the law is a contentbased restriction on speech and that the government had
a less restrictive alternative to achieve these goals, such
as signal control and selective blocking by subscribers
c. Telephones
i. Sable Communications v. FCC: overturned a federal
statute prohibiting obscene or indecent telephone
conversations, i.e. “dial-a-porn,” noting that “there in no
‘captive audience’ problem here; callers will generally
not be unwilling listeners”
d. Internet
25
i.
i. Reno v. ACLU: invalidated certain provisions of the
Communications Decency Act of 1996 which made it a
federal crime to transmit obscene or indecent material
over the internet, stressing the vagueness of the statute,
distinguishing it from Pacifica because this Act applied
at all hours, and recognizing that, while the government
has a compelling interest in protecting children from
exposure to sexual material, it cannot restrict speech
available to adults for this end
ii. Ashcroft v. ACLU: affirmed and concluded that the Child
Online Protection Act would be declared
unconstitutional, stating that the law was a content-based
restriction and thus must meet strict scrutiny and this law
was not the least restrictive alternative because filters
were more likely to be effective than the statute
3. Underlying issues
a. Should there be a category of “indecent” speech? Some cases
emphasize the vagueness of “indecent,” others seem untroubled
by it
b. What level of scrutiny should be used in evaluating government
restrictions? Most cases do not articulate a standard of review,
while some use strict scrutiny on the grounds that the laws are
content-based restrictions
c. Should the Court analyze each medium separately, especially as
people today often receive all of these media through a single
source?
Commercial Speech
i. Constitutional protection
1. Initially, the Court refused to protect commercial speech (Valentine v.
Chrestensen and Breard v. City of Alexandria)
2. Bigelow v. Virginia: declared unconstitutional a state law that made it a
crime to encourage or prompt the procuring of abortions, holding that
just because a particular advertisement had commercial aspects or
reflected the advertiser’s commercial interests did not negate all 1st
amendment guarantees
3. Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc.: declared unconstitutional a VA law that prohibited
pharmacists from advertising the prices of prescription drugs, holding
that speech that “does no more than propose a commercial transaction is
protected and that the economic interests of the speaker should not
matter, nor should it matter that the speech is factual rather than opinions
or ideas, but that advertising illegal activities or false and deceptive
advertising would not be protected
4. Critics argue that the expression is not worthy of protection because it
does not directly concern the political process and self-government
ii. What is commercial speech?
1. Bolger v. Youngs Drug Products: held that brochures were a form of
commercial speech, stating that commercial speech has three
characteristics
a. It is an advertisement of some sort
b. It refers to a specific product
26
c. The speaker has an economic motivation for the speech
2. Central Hudson Gas v. Public Service Commission: the state prohibited
an electrical utility from advertising because of the need for conservation
of fuels and because the utility had a monopoly and therefore didn’t need
to advertise to succeed relative to competitors; Court declared that the
Constitution accords a lesser protection to commercial speech than to
other constitutionally guaranteed expression, articulating a four-part
analysis for analyzing government regulation of commercial speech:
a. At least must concern lawful activity and not be misleading
b. Have a substantial government interest
c. The regulation directly advances the governmental interest
asserted
d. Not be more extensive than is necessary to serve that interest
(Board of Trustees of the State University of New York v. Fox
replaced this “least restrictive means” test with “narrowly
tailored”)
3. The government has the burden of proving that the restriction is justified
iii. What commercial speech is not protected?
1. Advertising of Illegal Activities
a. Not protected by the 1st amendment, without needing to meet the
test for incitement
b. Pittsburgh Press Co. v. Pittsburgh Commission on Human
Relations: upheld a decision that a newspaper violated a city’s
ordinance by placing help-wanted advertisements in columns
captions “Jobs-Male Interest,” “Jobs-Female Interest,” and
“Male-Female,” emphasizing that discrimination is illegal
commercial activity
2. False and Deceptive Advertising
a. Unprotected within the realm of commercial speech, but
“erroneous statements are inevitable in free debate and it must be
protected if the freedoms of expression are to have the breathing
space that they need to survive (New York Times v. Sullivan)
3. Advertising that Inherently Risks Deception
a. Laws that prohibit professional from advertising or practicing
under trade names
i. Friedman v. Rogers: upheld a state law that prohibited
optometrists from advertising and practicing under trade
names, concluding that trade names are nothing more
than commercial speech and that it’s a significant
possibility that they will be used to mislead the public
b. Restrictions on the ability of professional to solicit prospective
clients
i. Solicitation by attorneys
1. The government may not prohibit attorneys from
engaging in truthful, non-deceptive advertising
of their services
2. BUT, they may prohibit attorney in-person
solicitation of prospective clients for profit
because such speech inherently risks becoming
deceptive and thus even truthful solicitations can
be forbidden when they are conducted in person
27
j.
and where the attorney would profit from the
representation (Ohralik v. Ohio State Bar
Association, In re Primus, Shapero v. Kentucky
Bar Association)
3. Conversely, solicitation where the attorney
would not profit directly from the client or
solicitation by mail is generally protected
4. Cal State Bar Rule 1-400 
ii. Solicitation by accountants
1. The government may not prohibit accountants
from engaging in in-person solicitation of clients
for profit because, unlike an attorney who is
“professionally trained in the art of persuasion,”
a CPA’s training emphasizes independence and
objectivity, not advocacy (Edenfirled v. Fane,
distinguishing Ohralik)
Symbolic Speech – Expressive Conduct
i. When is conduct communicative?
1. Spence v. Washington: reversed the conviction of an individual for flag
desecration, who taped a peace sign on an American flag after the killing
of students at Kent State, stating that it was a pointed expression of
anguish about the then-current domestic and foreign affairs of his
government; established a test for when conduct should be regarded as
communicative
a. Intent to convey a particularized message
b. There is a substantial likelihood that the message would be
understood by those receiving it
ii. When may the government regulate conduct that communicates?
1. United States v. O’Brien: upheld a federal law making it a crime to
“knowingly destroy” or “knowingly mutilate” draft cards, identifying
several justifications, including that requiring the presence of draft cards
facilitates emergency military mobilization, aids communication with a
person’s draft board, and reminds individuals to notify their draft board
of any changes, and stating that the motive to prevent political protest
was irrelevant; formulated a test for evaluating the constitutional
protection for conduct that communicates
a. Within the constitutional power of the government
b. Furthers an important or substantial government interest
c. The governmental interest is unrelated to the suppression of free
expression
d. The incidental restriction on 1st amendment freedoms is no
greater that essential to the furtherance of the interest
2. Nude dancing
a. In Barnes (discussed above), the Court characterized nude
dancing as conduct that communicates and expressly applied
O’Brien, finding that it is within a state’s police power to
prohibit public nudity, that there is an important interest
unrelated to suppression of the message because of the state’s
interest in morality, and that the impact on communication was
no greater than necessary because the dancers could still express
their message (with clothes); this is troubling because the state’s
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IV.
moral justification was not really unrelated to the suppression of
free expression
b. The Court also reaffirmed the power of local governments to ban
nude dancing in Erie (discussed above), but on different grounds
3. Flag desecration
a. Texas v. Johnson: overturned a state law prohibiting any person
to “deface, damage, or otherwise mistreat” a flag “in a way that
the actor knows will seriously offend one or more persons likely
to observe or discover his action”; here, a man was arrested for
burning a flag as part of a protest at the RNC; the Court
emphasized that the law’s purpose was to keep the flag from
being used to communicate protest or dissent and that the
government may not prohibit the expression of an idea simply
because it finds the idea itself offensive or disagreeable; dissent
argued that whatever message was transmitted could have been
conveyed in a dozen different ways
b. To avoid any amendments to the Constitution to prohibit flag
burning, Congress adopted the Flag Protection Act of 1989 that
made it a crime to knowingly mutilate, deface, defile, burn, or
trample upon the flag
c. In United States v. Eichman, the Court declared this law
unconstitutional as well, stating that it had the same fundamental
flaws at the TX statute, even if it wasn’t limited to situations
where the conduct would offend another
4. Campaign finance
a. Political speech is at the very core of the 1st amendment; in Eu v.
San Francisco County Democratic Central Committee, the Court
declared that the 1st amendment “has its ‘fullest and most urgent
application’ to speech uttered during a campaign for public
office”
b. Buckley v. Valeo: involved a challenge to the 1974 amendments
to the FEC Act of 1971; the Court refused to apply O’Brien,
thereby clearly treating spending money in a political campaign
as a form of political speech, not conduct that communicates,
i. Drawing a distinction between contribution limits by
individuals, groups, or PACs and campaign expenditure
limits, upholding the former and invalidating the latter,
stating that expenditure limits restricted the nature and
quality of speech, unlike contribution limits, which also
had weaker justifications
ii. Upholding disclosure requirements because they provide
important information to the electorate, they deter
corruption or the appearance of corruption, and they
provide crucial information for enforcing the
contribution limits in the law
iii. Upholding the provisions that provided for public
funding of presidential elections, stating that such
funding increases expression in connection with election
campaigns
Forums of Expression
29
a. The Court initially rejected any claim of a right to use government property for speech
purposes (Davis v. Massachusetts)
b. But, for the last half-century, the Court has recognized a right to use at least some
government property under some circumstances for speech (Hague v. Committee for
Industrial Organization and Schneider v. New Jersey)
c. Perry Education Association v. Perry Local Educators’ Association: classified the
different types of government property and articulated varying rules for when speech in
each can be regulated (see below)
d. Government Properties
i. Public Forums: government property that they are constitutionally obligated to
make available for speech, i.e. sidewalks and parks
1. The regulation must be content-neutral, unless the government can
justify a content-based restriction by meeting strict scrutiny
a. Police Department of the City of Chicago v. Mosley: overturned
a law that prohibited picketing or demonstrations within 150 feet
of a school building while the school was in session, except for
peaceful picketing in connection with a labor dispute, declaring
that it was an impermissible subject matter restriction on speech
and expressly using equal protections for analyzing the law by
stating that special treatment was given to one particular subject,
similar to Carey v. Brown (see facts above)
b. Frisby v. Schultz: sustained an ordinance that prohibited
picketing “before or about” any residence, concluding that the
law was content-neutral and was narrowly tailored to protect
people’s tranquility and repose in their homes, as ordinance
allowed picking in the are and even on the street
c. Thus, regardless of whether analysis is under equal protection or
solely under 1st amendment, the government cannot regulate
speech in a public forum based on the viewpoint or subject
matter of the speech unless strict scrutiny is met
2. It must be a reasonable time, place, or manner restriction that serves (1)
an important government interest and (2) leaves open adequate
alternative places for speech
a. Heffron v. International Society for Krishna Consciousness:
upheld a regulation of speech at the MN state fair that prohibited
the distribution of literature or the soliciting of funds except at
booths, accepting the argument that the rule was justified by the
important interest of regulating the flow of pedestrian traffic as
“sufficient to satisfy the requirement that a place or manner
restriction must serve a substantial state interest” and stating that
the regulation was content neutral because it applied to all
literature
b. Hill v. Colorado: upheld a regulation on protests outside abortion
clinics, stating it was content-neutral because it’s not a regulation
of speech but a regulation of where speech may occur, it was not
adopted because of disagreement with the message it conveys,
and the state’s interest in protecting access and privacy are
unrelated to the content and also stressing that this was a time,
place, and manner restriction on speech that served the important
interest of protecting patients and health care workers
30
c. Kovacs v. Cooper: upheld a restriction on the use of sound
amplification devices, such as loudspeakers on trucks
d. Grayned v. Rockford: upheld a city’s ordinance that prohibited
any person to make any noise or diversion which disturbs or
tends to disturb the peace or good order of a school, finding that
the restriction was based on the city’s important interest in
ensuring order sufficient for schooling and, thus, a reasonable
time, place, and manner restriction
e. Clark v. Community for Creative Non-Violence: approved a
federal regulation and Park Service decision to keep a group
protesting the plight of the homeless from sleeping in the park,
accepting that it was symbolic purpose, but emphasizing that the
content-neutral regulation left adequate alternative ways of
expressing the message
f. Brown v. Louisiana: reversed the conviction of a group of blacks
who had conducted a silent sit-in as a protest at a racially
segregated public library, stressing that a silent protest did not
interfere with the operation of the library
g. United States v. Grace: declared unconstitutional a broad
restriction of speech on the public sidewalks surrounding the
Supreme Court’s building, finding that a total ban on all speech
was unnecessary to preserve order and prevent disruption of
Court proceedings
3. A licensing or permit system for the use of public forums (1) must serve
an important purpose, (2) give clear criteria to the licensing authority that
leaves almost no discretion, and (3) provide procedural safeguards such
as a requirement for prompt determination of license request and judicial
review of license denials
a. Cox v. New Hampshire: upheld an ordinance that required that
those wishing to hold a parade or demonstration obtain a permit
and that allowed a permit to be denied only if the area already
was in use by another group, finding that it was an important
interest in having only one demonstration at a time and that the
“licensing board was not vested with arbitrary power or an
unfettered discretion”
b. Lovell v. Griffin: overturned a city ordinance that prohibited the
distribution of leaflets, literature, or advertising without the
written permission of the city manager, stating that the restraint
strikes at the very foundation of the freedom of the press because
that freedom was primarily directed against the power of the
licensor
c. Forsyth County, Georgia v. Nationalist Movement: overturned
an ordinance that required a permit in order for a demonstration
to occur and that allowed government officials to charge a permit
fee of up to $1000, concluding that there are no articulated
standards and that the 1st amendment prohibits the vesting of
such unbridled discretion in a government official
4. Need not use the least restrictive alternative, although they must be
narrowly tailored to achieve the government’s purpose
a. Ward v. Rock Against Racism: upheld a requirement in NYC that
any concert using the Bandshell had to use city sound engineers
31
and city sound equipment, concluding that “so long as the means
chosen are not substantially broader than necessary to achieve
the government’s interest, the regulation will not be invalid
simply because … the government’s interest could be adequately
served by some less-speech-restrictive alternative”
ii. Designated (Limited) Public Forums: places that the government could close to
speech, but that the government voluntarily and affirmatively opens to speech
1. Widmar v. Vincent: ruled that a university that allowed student groups to
use school buildings could not exclude religious student groups from
access
2. Lambs Shelter v. Center Moriches Union Free School District: held that
once a school district allowed community groups to use facilities during
evenings and weekends, religious groups could not be excluded
3. Good News Club v. Milford Central School: considered the
constitutionality of an elementary school’s exclusion of a group’s using
school property after school for religious activities including prayer and
Bible study, holding
a. That excluding the group violated the protection of free speech,
stating that, although a state may be justified in reserving its
forum for certain groups or for the discussion of certain topics, it
cannot discriminate on the basis of viewpoint and the restriction
must be reasonable in light of the purpose served by the forum
b. That allowing the religious group to use the property on the same
terms as other community groups would not violate the
establishment clause
iii. Non-Public Forums: government properties that they can close to all speech
activities, so long as the regulation is reasonable (not “arbitrary, capricious, or
invidious”) and viewpoint neutral
1. Adderley v. Florida: held that the government could prohibit speech in
the areas outside prisons and jails, emphasizing the government’s
security interests and the ability of the government to “preserve the
property under its control for the use to which it is lawfully dedicated”
2. Greer v. Spock: held that military bases, even parts of bases usually open
to the public, are a nonpublic forum, stating that the government could
exclude speech like demonstrations, picketing, sit-ins, protest marches,
and political speeches to insulate the military from political activities
3. Lehman v. City of Shaker Heights: upheld a content-based restriction
(city sold advertising space on its buses, but refused to accept advertising
on behalf of a candidate for public office), stating that the managerial
decision to limit car card space to innocuous and less controversial
commercial and service oriented advertising does not rise to the dignity
of a 1st amendment violation…weird.
4. United States v. Kokinda: upheld a restriction on solicitations on post
office properties, stating that postal sidewalks do not “have the
characteristics of public sidewalks traditionally open to expressive
activity”
5. International Society for Krishna Consciousness, Inc. v. Lee: concluded
that airports are a nonpublic forum and regulations would be upheld so
long as they are reasonable, stating that the government has an important
interest in preventing fraud with regard to solicitation of funds, but that
the distribution of literature is permissible
32
V.
6. Arkansas Educational Television Commission v. Forbes: held that a
candidate debate sponsored by a government-owned television station is
a non-public forum and that the exclusion of minor party candidates is
not viewpoint discrimination, stating that a broadcaster’s choice of
content and selection of speakers is itself expressive activity protected by
the 1st amendment and that the selection of speakers was based on the
level of popular support, not the viewpoint expressed
7. So, some possible criteria…
a. Whether the places it traditionally available to speech, i.e.
sidewalks v. airports
b. Whether speech is incompatible with usual functions of the place
c. Whether the primary purpose of the place is for speech or nonspeech
e. Authoritarian Environments
i. Military
ii. Prisons
iii. Schools
1. Tinker v. Des Moines Independent Community School District: ruled that
students in a high school could wear black armbands to protest the
Vietnam War, stating that “state-operated schools may not be enclaves of
totalitarianism,” that the speech was protected absent a showing that is
would “materially and substantially interfere with the requirements of
appropriate discipline in the operation of the school,” and that armbands
were a silent protest that did not disrupt education within the schools
2. Morse v. Frederick: held that confiscating a banner stating “Bong Hits 4
Jesus” at a school-sanction and school-supervised event and suspending
the student who brought the banner did not violate the 1st amendment
because schools may take steps to safeguard those entrusted to their care
from speech that can reasonably be regarded as encouraging illegal drug
use
Freedom of Association
a. Laws Prohibiting and Punishing Membership
i. Government may punish membership only if it proves
1. That a person actively affiliated with a group
2. Knew of the group’s illegal objectives
3. Had the specific intent to further those illegal objectives (see Scales and
Noto, above)
ii. Elfbrandt v. Russell: applied Scales test to a state’s loyalty oath and law that
prohibited anyone from holding office if they were a member of a group such as
the Communist Party, stating that it was impermissible for the government to
punish individuals for being a member of a group without proof that the
individual join knowing of its illegal objectives and with the specific intent to
further them (same holding as in Keyishian v. Board of Regents and United States
v. Robel)
b. Laws Requiring Disclosure of Membership
i. NAACP v. State of Alabama: overturned an AL law which required that out-ofstate corporations meet certain disclosure requirements, including the disclosure
of NCAAP membership lists, stating that the inviolability of privacy in group
association may in many circumstances be indispensible to preservation of
freedom of association, particularly where a group espouses dissident beliefs
33
(reaffirmed in Shelton v. Tucker, where state law required all teachers disclose
their group memberships on an annual basis)
ii. Campaign disclosure (see Buckley, above)
c. Compelled Association
i. Abood v. Detroit Board of Education: upheld a state law that required all local
government employees to pay a union service charge, stating that the nonmembers could be forced to pay a charge to subsidize the collective bargaining
activities of the union, but that it was unconstitutional to use the charges to pay
for ideological causes (reaffirmed in Keller v. State Bar of California, stating that
bar dues could be collected from all members to pay for bar-related activities)
ii. Board of Regents of the University of Wisconsin System v. Southworth: rejected a
1st amendment challenge by students who objected to being forced to subsidize
causes that opposed, stating that the mandatory student activity fees helped to
facilitate a diversity of ideas on campus and were permissible so long as they
were administered in a viewpoint neutral manner
d. Laws Prohibiting Discrimination
i. Roberts v. United States Jaycees: reaffirmed freedom of association as a
fundamental right, but stated that it is not absolute and that infringements on that
right may be justified by regulations adopted to serve compelling state interests,
such as prohibiting discrimination, unrelated to the suppression of ideas, that can
not be achieved through means significantly less restrictive of associational
freedoms (reaffirmed in Board of Directors of Rotary International v. Rotary
Club of Duarte)
ii. Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston: held that
a private group that organized a St. Patrick’s Day Parade could exclude a gay,
lesbian, and bisexual group from participation, stating that organizing a parade is
an inherently expressive activity and those doing so have a right to exclude
messages inimical to their own
iii. Boy Scouts of America v. Dale: held that freedom of association protects the right
of the Boy Scouts to exclude gays in violation of a state’s antidiscrimination
statute because of the group’s expressive message, which was based on the Boy
Scouts’ interpretation of its own words and from the position it had taken during
litigation
Freedom of Religion
I.
Introduction
a. “Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof”
b. What is religion? Has been considered in 3 contexts:
i. Under the Selective Service Act
1. United States v. Seeger: broadly defined religion to include nontheistic
views, stating that “the test of belief ‘in a relation to a Supreme Being’ is
whether a given belief that is sincere and meaningful occupies a place in
the life of its possessor parallel to that filled by the orthodox belief in
God of one who clearly qualifies for the exemption (reaffirmed in Welsh
v. United States)
ii. Requirement for Sincerely Held Beliefs
1. United States v. Ballard: indicated that the judiciary can determine only
if the individuals sincerely held their beliefs as religious views, not
whether they are true or false (here, the leaders of the “I Am” religion
were indicted for mail fraud because they asked people to send them
34
II.
donations in exchange for offering to cure them of diseases); dissent
stated that sincerity is not likely to be ascertained by a jury or a court
iii. The Relevance of Religious Dogma and Shared Beliefs
1. Thomas v. Review Board of the Indiana Employment Security Division:
ruled that an individual could claim a religious belief even though it was
inconsistent with the doctrines of his or her religion, stating that it “is not
within the judicial function and judicial competence to inquire whether
the petitioner or his fellow worker more correctly perceived the
commands of their common faith” (reaffirmed in Frazee v. Illinois
Employment Security Department)
Free Exercise Clause
a. Introduction
i. Embraces two concepts
1. Freedom to believe, which is absolute
2. Freedom to act, which was some limitations
ii. Prior to the 1960s, the Court did not formulate a test for the free exercise clause,
although it did invalidate laws that precluded solicitation for religious purposes
(Cantwell v. Connecticut) or that taxed such activity as infringing freedom of
speech and religion (Murdock v. Pennsylvania and Follett v. McCormick)
b. Sherbert v. Verner: held that strict scrutiny should be used in evaluating laws burdening
free exercise of religion and declared unconstitutional the denial of unemployment
benefits to a woman who was discharged from her job rather than work on her Saturday
Sabbath
c. While Sherbert established a strict scrutiny standard, the Court has rarely struck down
laws on this basis, except in two areas
i. Laws that denied benefits to those who quit their jobs for religious reasons
(Thomas v. Review Board, Hobbie v. Unemployment Appeals Commission of
Florida, and Frazee v. Illinois Department of Income Security, all holding that
employment benefits must be given to people who quit jobs for religious reasons)
ii. Compulsory schooling laws (Wisconsin v. Yoder, where the Court held that free
exercise of religion required that Amish parents be granted an exemption from
compulsory school laws for their 14- and 15-year-old children)
d. Employment Division v. Smith: involved a challenge by Native Americans to an OR law
prohibiting use of peyote, a hallucinogenic substance, challenging the state’s
determination that their religious use of peyote, which resulted in their dismissal from
employment, was misconduct disqualifying them from receipt of unemployment
compensation benefits; the Court rejected the use of strict scrutiny for challenges to
neutral laws of general applicability that burden religion, stating that free exercise “does
not relieve an individual of the obligation to comply with a ‘valid and neutral law of
general applicability on the ground that the law proscribes (or prescribes) conduct that his
religion prescribes (or proscribes)’”
i. Neutral law of general applicability
1. Rational basis test standard
a. With the exception of cases that involve “the Free Exercise
Clause in conjunction with other constitutional protections, such
as freedom of speech and of the press, or the right of parents to
direct the education of their children,” which use strict scrutiny
ii. Not neutral or not of general applicability
1. Strict scrutiny standard
2. Church of the Lukumi Babalu Aye, Inc. v. Hialeah: overturned a city
ordinance that prohibited ritual sacrifice of animals, stating that the law
35
III.
was not neutral because its clear object was to prohibit a religious
practice and that it was not of general applicability because the law was
drafted only to forbid killing occasioned by religious sacrifice and not in
generally preventing cruelty to animals
e. The Law after Smith
i. Religious Freedom Restoration Act (RFRA) of 1993: purpose “to restore the
compelling interest test as set forth in Sherbert and Yoder, and to guarantee its
application in all cases where free exercise is substantially burdened; and to
provide a claim or defense to persons whose religious exercise is substantially
burdened by the government”
1. City of Boerne v. Flores: held RFRA as unconstitutional as applied to
state and local governments because Congress lacked the authority under
§5 of the 14th amendment to expand the scope of rights
ii. Religious Land Use and Institutionalized Persons Act (RLUIPA): government
lands use decisions and treatment of prisoners that significantly burden religion
must meet strict scrutiny
f. Can the government deny funding for religious education?
i. Locke v. Davis: held that a state government can restrict its college scholarships
so as to prevent them from being used by those studying for the ministry,
emphasizing that while the government may constitutionally allow such
scholarships, it is not required to do so and stating that the denial of scholarship
money does not interfere with free exercise of a religion because an individual
can still receive training to be a pastor
Establishment Clause
a. County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter:
concerned two holiday displays—one was a crèche and one was a large Christmas tree,
menorah, and a sign saying that the city salutes liberty during the holiday season; the
Court deemed the display as unconstitutional, but with three different approaches:
i. Three justices took a strict separation approach, stating that the Establishment
Clause should be construed to create a strong presumption against the display of
religious symbols on public property
ii. Four justices took an accommodation approach, stating that “the principles of the
Establishment Clause and our Nation’s historic traditions of diversity and
pluralism allow communities to make reasonable judgments respecting the
accommodation or acknowledgment of holidays with both cultural and religious
aspects
iii. Two justices took a neutrality approach, specifically applying the symbolic
endorsement test, and found that the menorah was constitutional, but the nativity
scene was unconstitutional
b. Government Discrimination Among Religions
i. It is firmly established that the government violates the Establishment Clause if it
discriminates among religious groups
ii. Such discrimination will be allowed only if strict scrutiny is met
iii. Larson v. Valente: overturned a MN law that imposed registration and reporting
requirements on charitable organizations, but exempted religious institutions that
received more than half of their financial support from members’ contributions,
stating that the “fifty percent rule sets up precisely the sort of official
denominational preference that the Framers of the First Amendment forbade”
iv. Board of Education of Kiryas Joel Village School District v. Grumet: overturned
a state law that created a separate school district for a small village that was
inhabited by Hasidic Jews, stating that the government created a school district
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specifically to help one religion so that it could provide special education without
its children having to attend school with those outside the faith and also stating
that the law impermissibly delegated government authority to a religious entity
c. Theories of the Establishment Clause
i. Strict Separation: to the greatest extent possible government and religion should
be separated
1. If the law is not discriminatory, then use Lemon
2. Lemon v. Kurtzman Test requires that
a. There must be a secular purpose for a law
i. Stone v. Graham: overturned a state law that required the
Ten Commandments posted in public school classrooms
because it has “no s
ii. ecular legislative purpose”
iii. Edwards v. Aguillard: overturned a state law that
required the teaching of “creation science” because the
law’s primary purpose was to endorse a particular
religious doctrine
iv. McGowan v. Maryland: upheld state laws that required
businesses to close on Sundays because the “purpose
and effect…is to provide a uniform day of rest for all
citizens”
b. Its principal or primary effect must be one that neither advances
nor inhibits religion
i. Estate of Thornton v. Caldor: overturned a law that
provided that no person may be required by an employer
to work on his Sabbath because the law had a primary
effect that impermissibly advanced a particular religious
practice over all other interests
ii. Corporation of the Presiding Bishop of the Church of
Jesus Christ of Latter-Day Saints v. Amos: upheld an
exemption for religious organizations from Title VII’s
prohibition against discrimination in employment based
on religion because its purpose was “to alleviate
significant government interference with the ability of
religious organizations to define and carry out their
religious missions”
c. The statute must not foster an excessive government
entanglement with religion
ii. Neutrality Theory: government cannot favor religion over secularism or one
religion over others
1. Endorsement Test: the government violates the Establishment Clause if it
symbolically endorses a particular religion or if it generally endorses
either religion or secularism
a. Capitol Square Review and Advisory Board v. Pinette: issue of
whether the government could preclude the Ku Klux Klan from
from erecting a large Latin cross in the park across from the
Ohio Statehouse; the Court held that excluding the cross violated
free speech and allowing it to be present did not violate the
Establishment Clause
b. Several approaches to the endorsement test, discussed in Capitol
Square:
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i. Rejected the use of the test where the issue is private
speech on government property (plurality)
ii. Should be applied from the perspective of the
perceptions of a well-educated and well-informed
observer (concurrence)
iii. Should look to the perceptions of the reasonable
passerby (dissent)
iii. Accommodation: government violates the Establishment Clause only if it
literally establishes a church or coerces religious participation, i.e. the Court
should interpret the Establishment Clause to recognize the importance of religion
in society and accommodate its presence in government
1. Coercion Test (applied in Lee, see below)
a. A government may not coerce anyone to support or participate in
religion or its exercise, or otherwise act in a way which
established a state religion or religious faith, or tends to
b. But there tends to be violations of the Establishment Clause even
without coercion…
d. When Can Religion Become a Part of Government Activities?
i. Release Time
1. McCollum v. Board of Education: declared unconstitutional a school
policy of allowing students to be released to religious instruction classes
conducted during regular school hours in the school building by outside
teachers, stating that it violated the “wall of separation between church
and state” and explained that here the state’s tax-supported public school
buildings were being used for dissemination of religious doctrine and it
afforded sectarian groups an invaluable aid by providing pupils with
religious classes through use of the State’s compulsory public school
machinery
2. Zorach v. Clauson: upheld a school board policy that allowed students to
be released during the school day for religious instruction outside the
school, concluding that allowing students to receive religious instruction
during school hours was simply accommodating religion and not a
violation of the Establishment Clause since government funds and
facilities were not used
ii. School Prayers and Bible Reading
1. Santa Fe Independent School District v. Doe: declared unconstitutional
student-delivered prayers at high school football games and expressly
rejected that argument that this was impermissible discrimination against
religious speech, emphasizing that the school had not created a forum
where student could say anything they wanted
2. Engel v. Vitale: invalidated a school policy of having a “nondenominational prayer,” composed by the state’s Board of Regents,
recited at the beginning of each school day, emphasizing that neither the
fact that the prayer may be denominationally neutral nor that its
observance is voluntary can free it from the limitations of the
Establishment Clause
3. Abington School District v. Schempp: declared unconstitutional a state’s
law and a city’s rule that required the reading, without comment, at the
beginning of each school day of verses from the Bible and the recitation
of the Lord’s Prayer by student in unison, emphasizing that these
religious exercises were prescribed as part of the curricular activities of
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the students, conducted in school buildings, and supervised by teachers
and distinguished studying the Bible in a literature or comparative
religion course, which would be permissible
4. Wallace v. Jaffree: overturned an AL law that authorized a moment of
silence in public schools for “meditation or voluntary prayer,” stating
that the record was “unambiguous” that the law “was not motivated by
any clearly secular purpose –indeed the statute had no secular purpose”
5. Lee v. Weisman: declared unconstitutional clergy-delivered players at
public school graduations, stressing the inherent coercion in allowing
prayer at graduation because it was an important event and students
likely feel psychological pressure not be absent during the prayer; the
concurrence emphasized that prayers in public schools are
unconstitutional even absent coercion because the government mush not
engage in religious practices either (here, the school decided that there
should be a religious invocation and benediction, chose a clergy member
to perform the prayers, and gave instructions concerning them); the
dissent disagreed that the prayer was coercive and further argued that the
prohibition of prayer was impermissibly hostile to religion
iii. McCreary County v. American Civil Liberties Union of Kentucky: held that
posting large readily visible copies of the Ten Commandments in their
courthouses violated the Establishment Clause, applying the Lemon test and
finding that the purpose was not secular
iv. Van Orden v. Perry: held that the 6-foot monolith inscribed with the Ten
Commandments surrounding the TX State Capital, along with 21 historical
markers and 17 monuments, did not violate the Establishment Clause, stating that
the Lemon test was inappropriate and that the Court instead the analysis should
be driven by both the monument’s nature and the Nation’s history, elaborating
that the 40 years the monument went unchallenged suggest more strongly than
can any set of formulaic tests that few individuals, whatever their belief systems,
are likely to have understood the monument as amounting, in any significantly
detrimental way, to a government effort to establish religion and that the public
visiting the capitol grounds is more likely to have considered the religious aspect
of the tablets’ message as part of what is a broader moral and historical message
reflective of a cultural heritage (essentially it still satisfied the secular purpose
test)
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